Citation Nr: 0529756
Decision Date: 11/04/05 Archive Date: 11/14/05
DOCKET NO. 03-00 181 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
1. For the period December 22, 2000, to March 28, 2004,
entitlement to an evaluation in excess of 30 percent for
asbestosis.
2. For the period commencing March 29, 2004, entitlement to
an evaluation in excess of 60 percent for asbestosis.
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
ATTORNEY FOR THE BOARD
M. J. O'Mara, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1944 to
May 1944.
This matter comes before the Board of Veterans' Appeals
(Board) from a January 2002 rating decision by the New York,
New York Regional Office (RO) of the Department of Veterans
Affairs (VA), which continued the veteran's rating of 30
percent for asbestosis. In June 2005, the RO increased the
veteran's rating to 60 percent for asbestosis, effective
March 29, 2004. The veteran continues to request a higher
rating.
In January 2004, the Board remanded the veteran's case to the
RO for further development. The case was returned to the
Board in October 2005.
FINDINGS OF FACT
1. All pertinent notification and indicated evidential
development with respect to the veteran's claim have been
completed.
2. For the period December 22, 2000, to March 28, 2004,
asbestosis has been manifested by Forced Vital Capacity (FVC)
ranging from 38 percent of the predicted value to 72.3
percent of the predicted value, and Diffusion Capacity of the
Lung for Carbon Monoxide by the Single Breath Method (DLCO
(SB)) of 83.3 percent of the predicted value.
3. For the period commencing March 29, 2004, asbestosis has
been manifested by FVC of 70.7 percent of the predicted value
and DLCO (SB) of 54.6 percent of predicted value. The
veteran was also shown to use home oxygen at night.
CONCLUSIONS OF LAW
1. For the period December 22, 2000, to March 28, 2004, the
criteria for an evaluation of 60 percent for asbestosis have
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97,
Diagnostic Code 6833 (2005).
2. For the period commencing March 29, 2004, the criteria
for an evaluation of 100 percent for asbestosis have been
met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97,
Diagnostic Code 6833 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that there has been a significant change in
the law with the enactment of the Veterans Claims Assistance
Act of 2000 (VCAA), now codified at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). This law
redefines the obligations of VA to the appellant with respect
to claims for VA benefits.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his possession that
pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
The Board notes that a substantially complete claim was
received in December 2000, after the enactment of the VCAA.
An RO letter dated in March 2004, after the original
adjudication of the claim, provided the veteran the notice
required under the VCAA and the implementing regulations. In
the March 2004 letter, VA notified the veteran of his
responsibility to submit evidence that showed that his
condition was worse or had increased in severity. This
letter informed the veteran of what evidence was necessary to
substantiate claims for increased ratings. The letter also
suggested that he submit any evidence in his possession. By
this letter, the veteran was notified of what evidence, if
any, was necessary to substantiate his claim and it indicated
which portion of that evidence the veteran was responsible
for sending to VA and which portion of that evidence VA would
attempt to obtain on behalf of the veteran. Clearly, from
submissions by and on behalf of the veteran, he is fully
conversant with the legal requirements in this case. Thus,
the content of this letter complied with the requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
In short, the veteran is well aware of the information and
evidence necessary to substantiate his claim, he is familiar
with the law and regulations pertaining to his claim, he does
not dispute any of the material facts pertaining to his
claim, and he has not indicated the existence of any
outstanding information or evidence relevant to his claim.
See Desbrow v. Principi, No. 02-352 (U.S. Vet. App. May 4,
2004); Valiao v. Principi, 17 Vet. App. 229, 232 (2003)
(holding that failure to comply with VCAA constitutes
nonprejudicial error "[w]here the facts averred by a claimant
cannot conceivably result in any disposition of the appeal
other than affirmance of the Board decision"). Based on the
above, the Board concludes that the defect in the timing of
the VCAA notice is harmless error. See generally, Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004). See also Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning
blind adherence in the face of overwhelming evidence in
support of the result of a particular case, such adherence
will result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).
Therefore, to decide the appeal would not be prejudicial
error to the veteran.
Additionally, the August 2002 statement of the case and June
2005 supplemental statement of the case provided guidance
regarding the evidence necessary to substantiate his claim.
The January 2004 Board remand also provided guidance to the
veteran.
In the Board's opinion, the RO has properly processed the
appeal following the issuance of the required notice.
Moreover, all pertinent, available evidence has been obtained
in this case. The veteran has not identified any additional
evidence that could be obtained to substantiate the claim.
Therefore, the Board is satisfied that VA has complied with
the duty to assist requirements of the VCAA and the
implementing regulations. Accordingly, the Board will
address the merits of this claim.
Factual Background
In November 1996, the RO granted the veteran service
connection for asbestosis with a 10 percent evaluation,
effective July 11, 1995. In April 1999, the RO increased the
veteran's rating for asbestosis to 30 percent.
In December 2000, the veteran submitted a claim for an
evaluation in excess of 30 percent for his asbestosis
claiming that his condition had worsened.
In March 2001, the veteran underwent a VA examination. The
veteran reported occasional hemoptysis. This last occurred
one week prior to the examination. Examination of the lungs
found inspiratory and expiratory wheezes. There were no
rhonchi. Pulmonary function tests (PFTs) were conducted.
The FVC result was 72.3 percent of predicted value, after
administration of bronchodilators. The DLCO (SB) result was
83.3 percent of predicted value. The interpretation was that
spirometry results and flow-volume loop were consistent with
severe obstructive disease. The response to bronchodilators
was significant. Lung volumes showed an elevated residual
volume, which could be due to air trapping. Diffusion was
slightly decreased. An X-ray of the chest was performed and
revealed calcified pleural plaques and no active pathology.
The diagnosis was asbestosis.
An April 2001 private medical record from H.S., M.D. shows
that the veteran complained of wheezing and shortness of
breath. PFTs were conducted and revealed a FVC of 38 percent
of predicted post-bronchodilator. The diagnosis was chronic
obstructive pulmonary disease.
A May 2001 private medical record from H.S., M.D. shows that
the veteran presented in the office on an emergency visit
complaining of wheezing and shortness of breath. He had a
history of asthmatic bronchitis. He complained of chest
tightness and palps. His lungs exhibited scattered wheezes
and rhonchi throughout the lung field. PFTs were conducted
and revealed a FVC of 61 percent of predicted value post-
bronchodilator. The diagnosis was decompensated asthmatic
bronchitis. H.S., M.D. recommended immediate
hospitalization.
A May 2001 medical record from a private hospital shows that
the veteran was admitted for complaints of progressive
worsening shortness of breath and chest wheezes for the past
five days. These symptoms were associated with cough and
expectoration of yellowish sputum for two days. Physical
examination revealed that the veteran was in mild respiratory
distress. His respiratory rate was 24 and oxygen saturation
was 96 percent on room air. Examination of the chest showed
bilateral expiratory wheezes. The admitting diagnosis was
chronic obstructive pulmonary disease, acute exacerbation.
The veteran returned to the private hospital in late-May 2001
complaining of shortness of breath and chest wheezes that did
not improve with Albuterol inhaler. The admitting diagnoses
were acute coronary syndrome, and chronic obstructive
pulmonary disease, acute exacerbation. Physical examination
revealed bilateral expiratory wheezes and bilateral
inspiratory crackles. The discharge diagnoses were non-Q
wave myocardial infarction, chronic obstructive pulmonary
disease, diaphragmatic hernia and diabetes mellitus.
A July 2001 private medical record from H.S., M.D. shows that
the veteran complained of wheezing and shortness of breath.
He had a history of chronic acidosis and severe asthmatic
bronchitis. Examination of his lungs found scattered wheezes
and rhonchi throughout the lung field. PFTs were conducted
and revealed an FVC of 67 percent of predicted value post-
bronchodilator.
An August 2001 private medical record from H.S., M.D. shows
that the veteran presented in the office on an emergency
visit complaining of wheezing and shortness of breath. He
was also complaining of palps and dizziness and felt as if he
was about to faint at times. His lungs exhibited scattered
wheezes and rhonchi throughout the lung field. A chest X-ray
showed borderline cardiomegaly, haziness, and question old
asbestosis in the left upper lobe. PFTs were conducted and
revealed a FVC of 47 percent of predicted value post-
bronchodilator. H.S., M.D. recommended immediate
hospitalization because of the severe decompensated bronchial
asthma.
A November 2001 private medical record from H.S., M.D. shows
that the veteran had been hospitalized for asthmatic
bronchitis several times.
In the veteran's February 2002 notice of disagreement, he
argued that he had been admitted to the hospital on an
emergency basis several times because he could not breathe.
In addition, he gave up his voluntary services at the VA
hospital because of the worsening of his condition.
In March 2004, the veteran underwent a VA examination wherein
he reported having to use oxygen mainly at night. He
produced a lot of phlegm and could only walk one block before
experiencing extreme shortness of breath. Physical
examination of the lungs revealed harsh breath sounds in
bilateral lower lung fields. There was no evidence of cor
pulmonale or pulmonary hypertension, no residuals of
pulmonary embolism, no evidence of chronic pulmonary
thromboembolism, and no evidence of malignancy or any
residuals. There was dyspnea on minimal exertion. PFTs were
conducted and revealed a FVC of 70.7 percent of predicted
value post-bronchodilator. DLCO (SB) was 54.6 percent of
predicted value. The results of the PFTs revealed severe
airway obstruction with a marked response to bronchodilators
and severely decreased carbon monoxide diffusing capacity. A
computed tomography (CT) of the chest, conducted in August
2003, revealed multiple calcified pleural plaques right
apical linear density consistent with prior inflammation. An
echocardiogram revealed dilated right atrium, ejection
fraction 55 percent. The veteran's maximum exercise capacity
was in the range of 75-80 ml/kg/min. The diagnoses were
severe obstructive pulmonary disease with asbestosis and
coronary artery disease. The examiner opined that the
veteran was severely limited by his respiratory condition.
The chronic obstructive pulmonary disease was severe and was
related to his asbestosis. The veteran's physical activity
was limited due to his respiratory compromise.
In June 2005, the RO increased the veteran's evaluation to 60
percent for asbestosis, effective March 29, 2004.
Analysis
Disability evaluations are determined by applying the
criteria set forth in the VA's Schedule for Rating
Disabilities (Rating Schedule), found in 38 C.F.R. Part 4.
The Board attempts to determine the extent to which the
veteran's service-connected disability adversely affects his
ability to function under the ordinary conditions of daily
life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity
in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. §§ 4.1, 4.10 (2005).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (2005). Any reasonable doubt
regarding a degree of disability will be resolved in favor of
the veteran. 38 C.F.R. § 4.3 (2005).
Although a review of the recorded history of a disability is
necessary in order to make an accurate evaluation, (see 38
C.F.R. §§ 4.2, 4.41 (2004)), the regulations do not give past
medical reports precedence over current findings where such
current findings are adequate and relevant to the rating
issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell
v. West, 13 Vet. App. 31 (1999).
Asbestosis.
General Rating Formula for Interstitial Lung Disease
(diagnostic codes 6825 through 6833):
Forced Vital Capacity (FVC) less than 50-percent
predicted, or; Diffusion Capacity of the Lung for Carbon
Monoxide by the Single Breath Method (DLCO (SB)) less
than 40-percent predicted, or; maximum exercise capacity
less than 15 ml/kg/min oxygen consumption with
cardiorespiratory limitation, or; cor pulmonale or
pulmonary hypertension, or; requires outpatient oxygen
therapy
10
0
FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40-
to 55-percent predicted, or; maximum exercise capacity of
15 to 20 ml/kg/min oxygen consumption with
cardiorespiratory limitation
60
FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56-
to 65-percent predicted
30
FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66-
to 80-percent predicted
10
38 C.F.R. § 4.97, Diagnostic Code 6833 (2005).
After review of the evidence of record, the Board finds that
for the period December 22, 2000, to March 28, 2004, a 60
percent evaluation for the veteran's asbestosis is warranted.
The Board notes that from April 2001 to August 2001, the
veteran was treated by a private physician for shortness of
breath and wheezing. PFTs were conducted and varied in
results. The range of the FVC percent of predicted value was
from 38 percent of predicted value to 67 percent of predicted
value. In addition, in May 2001 and August 2001, H.S., M.D.
recommended immediate hospitalization because of the severity
of the lung disability. The Board notes that the veteran's
FVC scores are not consistent during this time period;
therefore, in looking at the veteran's medical records as a
whole, the Board finds that a 60 percent evaluation is
warranted. As such, the Board notes that in May 2001, the
veteran's FVC was 61 percent of predicted value, which meets
the criteria for a 60 percent evaluation. Although in April
2001 and August 2001, the veteran's FVC percent of predicted
value met the criteria for a 100 percent evaluation, his FVC
score did not consistently remain at that level. In this
regard, in July 2001, the veteran's FVC result was 67 percent
of predicted value, which would only warrant a 30 percent
evaluation. Therefore, as the disability is shown to be
severe, but has not consistently met the criteria for a 100
percent evaluation, the Board finds that a 60 percent
evaluation is warranted for the period December 22, 2000 to
March 28, 2004. 38 C.F.R. § 4.97, Diagnostic Code 6833
(2004).
For the period commencing March 29, 2004, the Board finds
that an evaluation of 100 percent is warranted. In this
regard, the Board notes that the veteran required use of home
oxygen, which he used mainly at night. In addition, the
examiner opined that the veteran was severely limited by his
respiratory condition and the chronic obstructive pulmonary
disease was severe and was related to his asbestosis.
Therefore, the veteran requires outpatient oxygen therapy and
his disability is severe, which meets the requirements for a
100 percent evaluation according to 38 C.F.R. § 4.97,
Diagnostic Code 6833 (2004).
ORDER
1. For the period December 22, 2000, to March 28, 2004, an
evaluation of 60 percent, and no more, for the veteran's
asbestosis is granted, subject to the laws and regulations
governing the payment of VA compensation.
2. For the period commencing March 29, 2004, an evaluation
of 100 percent for the veteran's asbestosis is granted,
subject to the laws and regulations governing the payment of
VA compensation.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs